DIETZ v. DAMAS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

December 5, 1996

LENORE DIETZ and WILLIAM DIETZ, individually and on behalf of JAMES DIETZ, an infant, Plaintiffs, against HAROLD DAMAS, individually and as caseworker, Child Welfare Administration, MARCIA LEWIS, individually and as supervisor, Child Welfare Administration, DANIEL ELMORE, individually and as supervisor, Child Welfare Administration, WILLIAM J. GRINKER, individually and as Commissioner of Social Services of the City of New York, BROOKE TRENT, individually and as Deputy Commissioner of Social Services of the City of New York, CITY of NEW YORK, and DIANE MCGURN, Defendants.

The motion for reargument is granted; however, for the reasons stated below, the original decision granting summary judgment to the City defendants is adhered to. The following analysis presumes familiarity with the facts and legal reasoning found in the memorandum and order dated July 11, 1996.

1. Summary Judgment was Appropriate

The opinion relied greatly on van Emrik v. Chemung County, 911 F.2d 863 (2d Cir. 1990), and, to a lesser extent, on the more recent Defore v. Premore, 86 F.3d 48 (2d Cir. 1996). In both of these cases, the Second Circuit held that summary judgment was proper under similar circumstances.
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It is notable that in their briefing of the summary judgment issue on this reargument motion plaintiffs make no reference to recent Second Circuit decisions concerned with child abuse proceedings. Plaintiffs first refer to this body of law in their reply brief where they make an effort to distinguish the facts of those cases from the facts presented here. See Pls.' Reply Br. at 11-12. Instead, their initial brief for reargument relies on a heterogeneous array of cases concerned with summary judgment motions in such areas as antitrust, police misconduct and Title VII.
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However, application of summary judgment standards used in cases that were based on substantially different issues of law and fact still results in the grant of summary judgment to the City defendants because there is no genuine issue with regard to any material fact.

When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.

The critical issues in this case are: first, whether CWA had an objectively reasonable belief that an emergency existed that warranted placing a hold on James in the hospital on December 22, 1988 and restricting his discharge to his grandparents on December 23, 1988; second, whether a delay in providing an adversarial hearing of six court days (during most of which period James was in the hospital), violated constitutional due process protections; third, whether the CWA investigation was constitutionally inadequate in failing to eliminate the Dietzes from suspicion prior to Dr. Giridharan's letter of March 1989 and Dr. McHugh's undated opinion that was issued after the Family Court hearing; fourth, whether the filing of the Family Court petition against the Dietzes was constitutionally malicious, that is, lacking probable cause; and finally, if probable cause existed, whether the petition was filed in retaliation for the exercise of First Amendment rights and succeeding in chilling the Dietzes' exercise of those rights. Disagreements about facts that do not bear on these issues are not issues of material facts, and "[a] dispute as to an immaterial fact does not preclude summary judgment." 10A Charles A. Wright et al., Federal Practice and Procedure 2d § 2725 (1983) (citing cases).

a. No Disputes Concerning Genuine Issues of Material Facts

(1)

In this case there is no question that there is a dispute as to whether Dr. Giridharan, the treating neurologist, told Harold Damas, the case worker, on December 30, 1988 that the shaking occurred "a few" hours before the symptoms were manifested, as she testified at her deposition, or the "several" hours that Mr. Damas recorded in his notes. However, whichever formulation is accurate is of no moment because in the full context of Dr. Giridharan's deposition, she clearly and unequivocably testified that she refused to give Mr. Damas a time frame for the abuse and told him that "the investigation[] [is] up to him." Giridharan at 5, City Ex. F. Moreover, in her deposition, Dr. Giridharan confirmed that Mr. Damas had informed her of the importance of establishing a time frame for the abuse and that, even with that knowledge, she had refused to provide one. See id. at 28-29. Thus no genuine issue of fact exists as to Dr. Giridharan's refusal to narrow the time-frame in the relevant period, and this refusal is the material fact.

This is the crux of the case. Contrary to plaintiffs' assertion, Pls.' Reply Br. at 3, who, in fact, was responsible for James's injuries is not the issue. Nor is this action a proceeding designed to provide the plaintiffs with a forum to seek public exoneration. The issue here is whether the City defendants' initial action in asserting custody of James was objectively reasonable. Plaintiffs' argument that the decision made several erroneous inferences is irrelevant to this issue; none of these allegedly erroneous inferences bear on material facts. The undisputed facts are that James was severely injured as the result of deliberate shaking; that Dr. Giridharan refused to limit the time frame in which the abuse might have occurred to eliminate Mr. and Mrs. Dietz from suspicion on December 22, 1988 to Det. Diggs; and that Dr. Giridharan again refused to narrow the time frame in a conversation with Mr. Damas on December 30, 1988. Once the defendants confirmed that Dr. Giridharan continued to hold the view that the child was the victim of abuse and that she could not give a time frame that eliminated the Dietzes as a possible source of the abuse, no issue of material fact remains. At this point in time, CWA continued to have an objectively reasonable belief that Mr. and Mrs. Dietz represented a danger to their severely injured son. In filing a petition in Family Court CWA could reasonably rely solely on Dr. Giridharan's refusal to narrow the time frame. The other information they obtained during this period served to reinforce CWA's reasonable belief that the Dietzes were responsible. This other information -- positive reports concerning Mrs. McGurn, from her neighbors, from other parents for whom she babysat, and even from Mrs. Dietz (as reported by the hospital social worker) -- did not give CWA or the police a reason to suspect Mrs. McGurn. The absence of evidence against Mrs. McGurn at this time, in turn, made it reasonable for both Det. Diggs and Mr. Damas to rely on Mrs. McGurn's statements.

Dr. Giridharan's position also led the police (whose investigation has been praised by the plaintiffs), to close the case on January 21, 1989, as "NON-AMENABLE there is no way to prove that any one person had Exclusive Opportunity." Pls.' Ex. A, emphasis in original. But in no way does this later action by the police undercut CWA's conclusion that an emergency situation existed and that they reasonably could believe that Mrs. Dietz was responsible. The police report clearly indicated that a crime had occurred but they could not definitively identify the culprit.

(2)

In their reply brief, plaintiffs argue for the first time that, even if CWA had reason to believe that Mrs. Dietz had blinded James by shaking him severely, it had to make the further prediction "that she would injure or endanger him again." Pls.' Reply Br. at 4. The only authority plaintiffs have cited for this asserted rule is Gottlieb, which does not stand for any such proposition. The significance of Gottlieb is the Second Circuit's statement of the rule that "where . . . there is an objectively reasonable basis for believing that parental custody constitutes a threat to the child's health or safety, government officials may remove a child from his or her parents' custody at least pending investigation." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (citations omitted). The initial decision here is completely consistent with the rule articulated in Gottlieb.

Plaintiffs' argument that caseworkers must make an additional determination is also directly refuted by van Emrik v. Chemung County, 911 F.2d 863 (2d Cir. 1990), a case factually much closer to plaintiffs'.
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In van Emrik, as here, a child was indisputably injured, but the caseworkers were unable to determine whether the parents or the babysitter caused the injury. There was no indication that the child would be injured again, or that the abuse was part of a pattern.
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Nevertheless, caseworkers obtained an order from a Family Court judge allowing them to take the child to a foster home. The Second Circuit affirmed the district court's grant of qualified immunity to the caseworkers. The Second Circuit's opinion bears repeating:

The issue is not whether it was absolutely essential to remove the child or whether a more sensitive course might have been to leave the child hospitalized pending further investigation. The issue is whether it was objectively reasonable for the defendants to make the decision they made, and no rational jury could find that it was not.

van Emrik, 911 F.2d at 866. See also Chayo v. Kaladjian, 844 F. Supp. 163, 169 (S.D.N.Y. 1994) ("To remove children, caseworkers need not 'believe' that child abuse is ongoing and that danger is imminent; caseworkers need only have been 'presented with evidence' of abuse and have 'reason to fear' that danger is imminent.") (quoting Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987). Plaintiffs' assertion that a caseworker must determine that an injured child is likely to suffer additional harm before removal is warranted is untenable.

Plaintiffs argue that details from Mr. Damas's case notes were improperly included in the opinion. As an initial matter, it should be noted that none of these details formed the basis for the decision, but were provided as a useful backdrop to illustrate the uncertainties surrounding James's injury. In general, plaintiffs have confused the opinion's construction of a chronological narrative from the extensive materials provided by both sides with drawing inferences and conclusions regarding material facts.

Plaintiffs first criticize the reference in the decision (inaccurately characterizing it as acceptance) to "the hearsay statement of defendant Diane McGurn, reported by defendant Harold Damas, that Mrs. Dietz carried James like a football . . . ." Pls.' Mot. P 9. The statement's existence is obviously relevant, at least to the extent that it bears on the objective reasonability of CWA's actions. Because it was not relied upon to determine whether CWA had probable cause for its actions, its veracity is not an issue of material fact. Nor was it treated as such in the decision.
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Similarly, the reference to the elevator that later was found to be malfunctioning is likewise without significance with respect to the critical issues of the case.

Again confusing narrative with inference, plaintiffs criticize the opinion's treatment of the dismissal of the McGurn indictment, see 932 F. Supp. at 441, stating: "The Court also tries to draw every inference against Mrs. Dietz regarding the grand jury testimony." Pls.' Mot. P 15. In fact, the passage quotes and summarizes Justice Feldman's decision that dismissed the McGurn indictment and includes Mrs. Dietz's attorney's explanation of her grand jury testimony. A narrative detailing the criminal prosecution of Mrs. McGurn and its disposition was necessary, at a minimum, to an understanding of Mrs. McGurn's position as a defendant and counter-claimant in the case.
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Plaintiffs also argue that the opinion mischaracterized the statement Dr. Grillo made to Mr. Damas. Specifically, plaintiffs note that the opinion stated that "[Mr.] Damas's notation that Dr. Grillo would not guess at who had injured James," without including Dr. Grillo's statement that he had "'utmost confidence in [grandparents] and [in] the parents that child will be . . . taken care of.'" Pls.' Mot. P 11. The opinion did quote both statements, but omitted that Dr. Grillo expressed confidence in the parents as well as the grandparents. The position of these statements in relation to each other in Mr. Damas's notes indicate that there is no relationship between Dr. Grillo's statement about the ability of the parents and grandparents to care for James and his refusal to guess at the person who caused the injury. The statement about the parents is made in the middle of a discussion about the child's immediate care, while the refusal to make a guess as to who caused the injury comes in response to a later, direct question. See City Ex. I.

Plaintiffs further allege that the "Court accepted defendant [Mr.] Damas's notations of what Brookdale Hospital personnel said on James's second admission" and "relied solely on [Mr.] Damas's notes in deciding that the Dietz family did not notify [Mr.] Damas or anyone else in CWA that James had been readmitted." Pls.' Mot. P 14. In fact, there is no notation in Mrs. Dietz's otherwise quite complete notes indicating any notice to CWA by the Salmos or the Dietzes of James's rehospitalization. See City Ex. AA, attached to Murray Reply Aff. dated August 2, 1995. Further, plaintiffs do not now assert that either the Dietzes or the Salmos notified CWA of James's readmission to the hospital. Non-movants must produce specific facts to avoid summary judgment. See Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. 1996). In any event, even if the Dietzes did notify CWA of James's readmission, giving CWA notice would not overcome the fact of Dr. Giridharan's refusal to eliminate them from suspicion at the time in question.

The New York Court of Appeals recently illustrated the fact that functional considerations determine the appropriate degree of accuracy required at each stage in the abuse reporting system. In Lee TT. v. Dowling, 87 N.Y.2d 699, 642 N.Y.S.2d 181, 664 N.E.2d 1243 (N.Y. 1996), the court, following Valmonte, held that due process required that a report of child abuse must be substantiated by a "fair preponderance of the evidence" before being released "as a screening device for future employment." Id. at 712. Significantly, the court also held that "during the investigative process the information may be retained on the strength of some credible evidence supporting it and released to . . . health care and law enforcement agencies under the terms and conditions listed in [N.Y. Social Services Law § ] 422(4)(A)." Id. Thus, where the investigation is at an early stage, and the deprivation is a temporary one pending an adversarial hearing, it is not improper for the defendants to rely on a report that contains some credible evidence. Thus, plaintiffs's statistical argument about error rates is irrelevant to this case.

In any event, plaintiffs' argument that a report of abuse is not always reliable is not relevant where, as here, a health care professional files an undisputed report of severe injury to a child. This alone would constitute probable cause -- as would the statement of an identified witness to an armed robbery. Moreover, CWA action was not taken solely on the basis of the report of abuse: critically, the severity of James's actual injuries was confirmed in discussions with Dr. Grillo and the Dietzes themselves. Finally, the report's errors were identified through discussion with the Dietzes. There is no dispute that James Dietz was severely injured as the result of child abuse. Nor is there any dispute that the report identifying his parents as possible abusers was filed at the direction of Dr. Giridharan. Plaintiffs do not dispute that Dr. Giridharan refused to narrow the time frame in a way that would eliminate them from suspicion when questioned by the police detective and the CWA caseworker who were investigating the report. As noted in the opinion, the injury Dr. Giridharan reported is considered prima facie evidence of abuse under New York law. See 932 F. Supp. at 447. CWA's actions with respect to the Dietzes were objectively reasonable. The petition that CWA filed in Family Court was based on probable cause and did not violate plaintiffs' constitutional rights.
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The delay in providing an adversarial hearing was justified and thus did not violate constitutional due process standards. Plaintiffs lack standing to sue for harms CWA may have done to others. See Allen v. Wright, 468 U.S. 737, 760-1, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984).

Whether or not the delay was a violation of state law is an open question of state law that this court has declined to consider. Plaintiffs have failed to raise any but conclusory allegations that the repetition of the errors from the initial abuse report in the petition resulted from malice rather than inadvertence when a substitute caseworker was used in Mr. Damas' absence.

3. Other Legal Arguments Raised in Plaintiffs' Reply Brief

Plaintiffs take issue, see Pls.' Reply Br. at 15-16, with the opinion's analysis of Sandin v. Conner, U.S. , 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), noting that it was limited by the Supreme Court to state prison regulations. See 932 F. Supp. at 453. Plaintiffs choose to ignore that the discussion responded to their attempt to extend pre-Sandin decisions, also based on state prison regulations, such as Vitek v. Jones, 445 U.S. 480, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980) and Wright v. Smith, 21 F.3d 496 (2d Cir. 1994), to establish the existence of liberty interests cognizable under 42 U.S.C. § 1983 that derive from state law rather than directly from the United States Constitution. Plaintiffs instead assert that the liberty interest they advocate is "living together as a family." Pls.' Reply Br. at 16. However, plaintiffs offer no reason that the Sandin limitation does not apply to their effort to extend the same rationale. In fact, Sandin is quite relevant, as it makes the extension of law for which plaintiffs have argued even less compelling. Sandin also undercuts plaintiffs' efforts to establish a 42 U.S.C. § 1983 violation flowing from an alleged violation of New York State law and regulation.

However, assuming (without deciding) that Sandin is not applicable, plaintiffs' argument must also fail.
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If Sandin is not applicable, then plaintiffs' claim is analyzed under Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). See Watson v. City of New York, 92 F.3d 31, 37 (2d Cir. 1996) (discussing Hewitt analysis in light of Sandin). Under Hewitt, the relevant inquiry is whether the state established an interest through "the repeated use of explicitly mandatory language." Hewitt, 459 U.S. at 472. While the language in § 1026 of the Family Court Act is mandatory in that it requires a hearing to be held, plaintiffs have not shown that the delay in this case falls outside the latitude the statute grants. As noted in the opinion, there was no constitutional violation here.
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See 932 F. Supp. at 448-52.

Although the precise nature of the liberty interest plaintiffs assert ("living together as a family") is unclear, in part because they do not cite any cases, it is possible that plaintiffs are suggesting that state law might implicate substantive due process concerns. "Living together as a family" suggests such an interest, and the cases plaintiffs earlier relied upon, such as Vitek, actually construe substantive liberty interests that exist "irrespective of state regulation." Sandin v. Conner, U.S. , 132 L. Ed. 2d 418, 115 S. Ct. 2293, 2297-8 n.4 (1995). "The substantive component of the due process clause 'bar[s] certain government actions regardless of the fairness of the procedures used to implement them . . . [and thereby] serves to prevent governmental power from being 'used for purposes of oppression."" Callahan v. Lancaster-Lebanon Intermediate Unit 13, 880 F. Supp. 319, 328 (E.D. Pa. 1994) (quoting Daniels v. Williams, 474 U.S. 327, 331-32, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986) (internal citations omitted)). There is no question that the liberty interest plaintiffs assert is one that has repeatedly been affirmed by the Supreme Court, but it is not without limits. See Lehr v. Robertson, 463 U.S. 248, 256-8, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983) (affording constitutional protection to parent-child relationship in "appropriate cases"); Hodge v. Jones, 31 F.3d 157, 163-4 (4th Cir. 1994) ("The maxim of familial privacy is neither absolute nor unqualified, and may be outweighed by a legitimate governmental interest.") (citations omitted) (holding that state's maintenance of "unsubstantiated" abuse report did not violate family liberty interest), cert. denied, U.S. , 130 L. Ed. 2d 496, 115 S. Ct. 581 (1994); Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993) ("The right to family integrity clearly does not include a constitutional right to be free from child abuse investigations."); Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (infringing on parental child custody liberty interest is permissible in emergency circumstances); cf. Marisol A. v. Giuliani, 929 F. Supp. 662, 676-77 (S.D.N.Y. 1996) (finding no substantive due process claim for right to associate with family members, regardless of statutory mandate).
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Here, plaintiffs assert this liberty interest in an abstract fashion by stating it as an interest in "living together as a family." However, precisely because the dimensions of this abstract interest are unclear, the Supreme Court has required that a plaintiff alleging the infringement of an abstract liberty interest must do so with particularity. "'If the test of 'clearly established law' were to be applied at this [abstract] level of generality, it would bear no relationship to the 'objective legal reasonableness' that is the touchstone of [ Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)].'" Frazier v. Bailey, 957 F.2d 920, 930 (1st Cir. 1992) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)). As the Fourth Circuit noted,

To expect Defendants to resolve what reasonable jurists have long debated -- namely the precise strictures of the penumbral right to familial privacy, cast in the sweeping language of the Supreme Court cases . . . especially in the face of a legitimate state interest such as the effective detection and prevention of child abuse -- is to impose burdens and expectations well beyond their reasonable capacities.

Hodge, 31 F.3d at 167 (footnote and citation omitted).

The Second Circuit has repeatedly stated that defendants "enjoy qualified immunity from liability for damages if at the time of the pertinent episode it was not clear that the actions they took violated established constitutional rights, or if it was objectively reasonable for them to believe that their actions did not violate such rights as were then clearly established." van Emrik v. Chemung County, 911 F.2d 863, 865-6 (2d Cir. 1990) (citing Robison v. Via, 821 F.2d 913, 920-21 (2d Cir. 1987)). Here, plaintiffs have not shown that the acts by defendants clearly infringed on the "nebulous right of family integrity." Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir. 1988) (rejecting argument that temporary removal of children from parents' home without a court order violates family liberty interest). As a result, plaintiffs' infringement argument is unavailing.

Plaintiffs next argue that there was no probable cause to continue the proceeding against the Dietzes after March 7, 1989, when Dr. Giridharan refined her time frame for James's abuse to exclude them. Plaintiffs' reliance on Posr v. Doherty, 944 F.2d 91 (2d Cir. 1991) to revive their claim for malicious prosecution is misplaced. In Posr the Second Circuit stated:

Id. at 100. In Posr, the court held that probable cause with respect to one charge did not establish that there could be no malicious prosecution with respect to other charges. The court noted that the issue was whether probable cause existed for each charge, not whether the charge was terminated in the plaintiff's favor. See id. Here, where there was probable cause for the only charge that was brought against the Dietzes, the specific Posr holding seems inapplicable. Nor have plaintiffs cited any other cases to support their argument that continuous probable cause is required. Further, Family Court, and not CWA, determined the level of supervision over the Dietzes after January 3, 1989. Thus no revision of the previous analysis of plaintiffs' malicious prosecution claim is warranted.

Finally, plaintiffs argue that their First Amendment claims were incorrectly dismissed. In doing so, plaintiffs first misstate the holding of the opinion with respect to their First Amendment claim and then incorrectly apply Johnson v. Bax, 63 F.3d 154 (2d Cir. 1995) to their claim. First, the opinion applied the analysis to plaintiffs' retaliatory prosecution claim that is applicable when, as here, probable cause exists for a prosecution. See 932 F. Supp. at 458. When probable cause exists, plaintiffs must show that the prosecution actually chilled their First Amendment rights. See Singer v. Fulton County Sheriff, 63 F.3d 110, 120 (2d Cir. 1995) (holding that conclusory allegations of retaliatory prosecution are insufficient to support a First Amendment claim), cert. denied, U.S. , 116 S. Ct. 1676 (1996). Here plaintiffs failed even to allege that the retaliation effectively chilled their exercise of their First Amendment rights, thus not even coming close to meeting their burden.
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Second, Johnson is concerned with "independent" First Amendment claims. In Johnson, the plaintiff sought damages for First Amendment violations that were independent of the resolution of the charge against him. See Johnson, 63 F.3d at 157. Here, the resolution of plaintiffs' claims are inextricably intertwined with the determination of the reasonableness of CWA's actions, because their First Amendment activity was prompted by the agency's investigation, and, in fact, was a response to it. In Johnson, the plaintiff was prevented from exercising his First Amendment rights prior to any effort to prosecute him, while here plaintiffs have not shown that their claim is independent.

Assuming, however, that plaintiffs' claim is independent, it still must fall. A retaliation claim requires an analysis of the actor's subjective intent as well as an examination of the objective reasonableness of that actor's conduct. See Blue v. Koren, 72 F.3d 1075, 1082 (2d Cir. 1995). The Second Circuit has indicated that in this context, a plaintiff alleging retaliation "must offer specific evidence of improper motivation." Id. at 1083.

Upon a motion for summary judgment asserting a qualified immunity defense in an action in which an official's conduct is objectively reasonable but an unconstitutional subjective intent is alleged, the plaintiff must proffer particularized evidence of direct or circumstantial facts . . . supporting the claim of an improper motive in order to avoid summary judgment.

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